Smart Art in the Phish Community

The past three years of Phish have been nothing short of amazing. We got our band back, healthy, happy and playing well. Things continued to get better with each show, each tour, and each year. Few complaints were heard from fans with the shows and the scene alike, leading to a vibrant community akin to what once was in the 1.0 and 2.0 eras of Phish.

Music aside, in the past year or so, fans have been making an increasing amount of art inspired by Phish, something that has been a positive sign of our growing community. Since Hampton, the phan made lot art has been increasing steadily to provide some truly unique and interesting pieces of art as well as designs that appeal to a niche interest. You may have seen a great deal of this art on PhanArt.net where the art is showcased, for free, to benefit The Mockingbird Foundation. There is even more art out there and fans walk around the lots selling their design in order to make it to the next show or trade for a ticket. Phish’s audience is expanding. The band is trying to gain a new audience in playing festivals like Austin City Limits, Outside Lands Festival and even Bonnaroo, when they could easily play their own festival for 30,000 fans and be the only band on the bill. As Phish grows, so does the scope of the band and the community becomes diluted with newer fans. This is welcome because the Phish community is nothing short of inclusive and welcoming to outsiders. With this growth comes the perception that the art we make is done without boundaries and new fans, both typical and atypical, can view this as carte blanche to make their own creations without limitations.

An example of infringing art – funny, but still infringing

There are however certain limitations that we have on the art we make, whether we recognize this or not. I wrote in the past onwhy fans should not use the logo andwhat constitutes infringement based on my experience assembling PhanArt: The Art of the Fans of Phish and getting a lesson in the legality of intellectual property all the while. I write today to discuss the reemergence of a fair amount of work that is at the same time potentially infringing and off-putting for fans, because it does not represent what we are capable of creating with our unlimited creativity, provided we follow some simple rules. Namely:

– Do not use the Phish logo or any offshoot of it (i.e. filling in the logo with a word)

– Do not use the word ‘Phish’, ‘Gamehendge’, ‘Gamehenge’ (the latter is the common misspelling but still not OK) or names of any side projects.

– Do not use the band member’s likenesses or names. By likeness, this includes photos, drawings, photoshops and uses of the familiar likeness of the band members.

– Do not sell photos of Phish. Phish does not allow any commercial use of band or band member names, images or likenesses without permission. That includes sale and/or commercial use of photographs.

Logos, names, and likenesses are a band’s intellectual property and thus, are things that they need to protect in order to make a living. The band is entitled to protect these things and like virtually every other band out there, they have and they will go to lengths to protect them, including using legal means to do so. The injunction the band uses to seize merch that infringes upon their intellectual property is one means and Phish fans should be thankful it is not more rampant. We do our best to keep on the legitimate side of things, in terms of lot art, but at times fans will make something that goes over the edge of what is allowable under the law. The interpretation of what a likeness is depends on who is potentially seizing the merchandise. Avoiding this and the other rules will help you to avoid confrontation.

An example from 1994 of infringing art – manipulating the logo is not allowed

Simply put – be creative! Some of the best Phish lot art follows these three rules. Some of the worst lot art ignores the rules and takes the path of least resistance. A lot of the Phish phan art made recently is 100% original and does not reference the band directly – it makes you think about the design in order to get the connection, an inside joke of sorts. There is a stark difference between piracy, where in the band’s intellectual property is ripped off and exploited for personal gain, and making an artistic homage to the band and their music. The latter art is stronger and more creative as a result of the restrictions. In a way, these restrictions benefit the Phish Art community’s creativity and increases the potential for even greater art.

Think of that episode of Top Chef when they can only use items found in a convenience store in their meal. They are restricted from all the good stuff, the easy stuff to make a meal. Instead, being limited draws out the true creative nature of the artist. In fact, these could not even be considered ‘limits’ but rather ‘boundaries’ which keeps the creativity moving forward instead of derailing and falling into a side-ditch where the intellectual property is used and exploited.

This is creative, but it’s still infringing

Phish Lot art and phan art are one thing, but infringing art is another. Making a poster or shirt or pin so unrecognizable that it’s unclear that it is even related to Phish is a goal many artists have in the back of their minds when making lot art, rather than taking the easy way out and using the logo or the band’s name in a piece of art, a shirt, a sticker or a pin. Anything that can be looked upon as infringing on the band and their image can lead to the band putting the kibosh on lot art. This isn’t a far fetched idea, it is quite the opposite; it is the reality we face if the infringing art that circulates on Ebay and in groups on Facebook isn’t quelled to the point where the ‘rules’ are followed and Phish fans abide by parameters that we have been unofficially granted. Infringing art sold online is part of the problem. A handful of bad apples that ignore the rules are risking the scene for all of us. Phish does have people buying the infringing art on lot which makes their case that more stringent rules on lot are needed.

The band and their management tolerates non infringing lot art, but when you use the logo, when you use the likenesses of the band members or the words ‘Phish’ or ‘Gamehendge’, it is not tolerated and this can wind up hurting the entire lot scene for everyone. It is in everyone’s best interest to speak up when you see art that includes the aforementioned infringing items. We do not want to bring unwanted attention to a thriving lot scene because a handful of fans felt it was ok to use Trey’s face on a shirt or Phish’s name on a poster, because if a few fans do it, more will take notice and follow suit and before long, the problem is out of hand.

This example of art using the band’s name = you are violating their copyrights

Remember, the Phish lot and art scene thrives as a privilege, not a right. NO other band allows fans to have this kind of lot scene in any form, not with the Shakedown area, the shirts, posters and pins

We as a community need fans to speak up and prevent this from becoming a grander issue. There will always be traditional bootleggers with logo infringing shirts for 10 bucks post show, but that should be the extent of the infringement, not the seed of more.

Get creative! Cool, smart art like this is way better than using the band’s name or logo

As a group, we can say that we do not condone the use of infringing items incorporated into the art fans make. This includes, but is not limited to: Posters, Shirts, Pins, Stickers, Drink Coozies, Lighters, Hats, Merit Badges and patches and other items as they are created and become popular on lot.

It’s a simple solution really. Stop making art that infringes and start making smart art. If you see someone sell art that is potentially infringing or are in the design process and mention the idea, tell them they might get it taken away which impacts us all. Report problems and share consequences and most importantly – spread the solution. And of course, don’t buy the infringing piece of lot art; in doing so, you don’t support those who don’t support the scene as we have been allowed to do so.

Song lyrics, song names, all that is allowable, based upon the legal standard applied to the nature of the art. “And we love to take a bath” as a sticker is OK; “Bathtub Gin” as a sticker is OK, “Phish brand Bathtub Gin” is not. It uses the word Phish and by using Bathtub Gin alone, fans know what you mean. Fans are smart – make us think about it. If you make it too easy, it’s not as cool.

This is non-infringing and an example of being creative with Phish related art

Got questions or thoughts on this? An experience seeing the infringing art? Got ideas on how to stem the flow of this art? Leave a comment below.

We are interested in preserving what we have, rather than losing it after 20 years of building up the phish lot community. If the piracy continues, the whole Phish lot scene and all of the truly wonderful art that goes with it will be threatened.

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10 thoughts on “Smart Art in the Phish Community”

Great article. Sometimes it can be hard to draw the line on what is infringement and what isn’t. Sometimes I get questions about my Fishman circle headbands. Wondering what your thought are on that out of curiousity.

Fishman dress themed items are not infringing, as Phish has never sought to register trademarks in them as graphic marks as it has done with “Phish”, the classic logo, “Gamehendge” and the various festival names and logos. These are registered trademarks you can actually look up (and register) on the US Patent and Trademark Office website. There is a lot of cost and legal red tape in registering and protecting a trademark.

The band name and likenesses are common law trademarks/copyrights and rights of artists to their own name (you can’t go out and bill your “tribute band” or rock act as “Phish”, although you can do a cover band and play their music).

There has also been litigation which limits Phish’s right to confiscate merchandise to the trademarked items and not the non-infringing items Pete mentions (like song lyrics, non “Ph-” words like Phamily, etc. and other creative adaptations typical on the lot….like posters with just city names and dates that don’t mention Phish or the name of the venue because they could be “confused” by consumers as being “official” or “authorized” merch).

This should not, BTW, be confused with “blanket” “no vending” or “permit” laws around venues. There is no inherent right to allow “shakedown streets” near venues. A lot of places like Hampton and NYC/MSG have had blanket bans on lot vending or harassment (need for city permit, sales tax authorization certificares, etc.). Merch can still be sold at poster shows and on-line. Pete’s point is that the more merch is infringing will give the authorities the incentive to eliminate vending of non-infringing art and merch entirely.

You left out Phish reserves the right to change the rules. We ran into this at Superball where we read a legal document made by Phish stating all the above “rules” including a copywright on the word superball, but they also got a copywright for watkins glen and the dates 1,2,3 2011 24 hours before and 24 hours after the event. also they banned the sales of any kind of ice cream, so there wouldn’t be competition for phish food. I have not seen them pull the venue and date card before and neither did any other lot artist I’ve come across.. I’m thankful the Phish police didn’t take our posters figure having my baby with us might have deterred them from doing so. However I did hear of them taking lot art with only watkins glen and the date on them:( Kinda put a bad taste in my mouth, and would love to hear others take on this. Don’t get me wrong I will always have a warm spot in my heart for phish, a band I have been traveling to see for over 20 years now, and will continue to enjoy.. Also, as a side note “NO other band allows fans to have this kind of lot scene in any form, not with the Shakedown area, the shirts, posters and pins” lets not forget the Grateful Dead please….

Ryan, fair point on the Dead but I was referring to current touring bands. The Dead were much more vicious than folks recall regarding the protection of their copyrights and trademarks. Phish lot is very chill compared to the issues fans had to deal with on Dead lot

The mission of PhanArt is to promote art in all forms, especially Concert Posters, Street Art, Official Prints and Fan Creations, and in the course of such work, to benefit The Mockingbird Foundation, which raises funds for music education for children.